Kutafin Law Review

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Vol 4, No 1 (2017)


2-27 46
The article considers some problems of cooperation between the Constitutional Court of the Russian Federation and other jurisdictional bodies at both national and supranational levels in the context of the author’s understanding of judicial constitutionalism. The author enunciates constitutional paradoxes of constitutional justice that bring to light the place and role of the Constitutional Court in the system of judicial bodies, the legal nature of the Court’s decisions, and the character of its influence over practical jurisprudence. Offering to assess modern European unifying trends in the context of national-constitutional integration, the author rests his idea on the fact that the grounds and framework of implementation of European Cconventional requirements must be determined with due regard to the unity of axiological (value) principles of a national legal system associated with the constitutional polyphony of a Conventional legal system that monitoring mechanisms must be not only of subsidiary character but also of consensual one. In view of that, the paper analyzes processes of implementation of the ratio decidendi (rationale for the decision) of the European Court of Human Rights into the judicial practice of the Constitutional Court of the Russian Federation and the ways of overcoming conflicts that emerge between them.
28-39 50
This paper analyzes a current issue of constitutional foundations for the harmonization of social interests in a public authority system. In particular, it observes the Russian Federation problems in this area. The matters of harmonization and sufficient fulfillment of people’s social interests within the public authority system require producing up-to-date means and methods of its formation and implementation. The current political modernization does not always have a tangible effect in accomplishing the state social functions; and the mechanism of proportional reflection of social groups’ interests within the modernization does not play the last role in this process. The state must have socialized institutions that reflect social expectations of a structurally inhomogeneous society to a sufficient extent to fulfill a social function.
40-49 106
The paper investigates the basic approaches to the understanding of doping as a category. The authors clarify the concept of doping based on the proposed criteria. To qualify agents, substances, methods, etc. as doping in the prescribed manner, two criteria are needed and are sufficient: a target criterion (athletic performance improvement) and a social criterion (conflict with the principles and the spirit of sport). Such criteria allow competent authorities and persons (experts) to decide in the prescribed manner whether to include or not a certain agent, substance, etc. into the relevant Restrictive List. A legal criterion (availability of an agent, substance, or method in the list of prohibited ones) is formal. It is crucial for the sports and law enforcement practice but not for the expert one.


50-63 76
The article analyzes important issues of the arbitration process in particular experts and expert evidence problems - both in common and civil law jurisdictions. It covers legal proceedings and arbitrations as well as the limits to the use of expert evidence. The overall objective of this paper is to provide the reader with an appreciation of expert evidence, some of the current debates on its use, and how to challenge it when it is used. The paper also contributes to the current debates on expert evidence. The key point here is that it is an opinion - what the expert thinks - which is of evidentiary value. Ordinarily, evidence is fact based, not opinion based. Such opinions, therefore, have to reach a very high standard in proceedings where they are used. If judgments and decisions are to use, and be based upon such opinions, they have to be sound, and be anchored in a real expertise.
64-70 40
Brazil has a challenging background with codifications. There is a culture of overacting by the lawmaker, with many laws becoming diverse, unique and contradictory. The author addresses the historical emergence of national laws in Latin America until the new Civil Procedural Code was passed in Brazil. The author begins with a conceptual reflection upon the updating of the “codifications” movement in the World.
71-75 43
This article is devoted to the analysis of concepts of justice, law and technique from different points of view. The first one brings transcendent justice into the legal dimension. The second one separates the law, which is entirely human, from justice, which is divine. Are these two approaches necessarily separated and incompatible? It would be wrong to put them in contrast, relegating the first one to the mysteries or reducing the other one to the technique due to a practical definition of relationships, law is for the man. The axiological approach is the feature of law. Whichever way you put it, the essence of law is to express values and valuable decisions. This aspect is not secondary, and it, does not represent a limit. It is at the bottom of a relationship between justice, law, and technique, because it means that each judge, despite the specificity of the subjects, the incidence of technique, the apparent barrenness of the approach, is the guardian of justice. So, the relationship of analyzed concepts indicates that law, as a way of human knowledge, is a humble expression of justice.


76-90 58
By studying the relation between human rights and a referendum, the author of this paper comes to the conclusion that a referendum may have both negative and positive impacts on human rights. The referendum offers, on the one hand, direct democracy. On the other hand, the referendum may increase the number of issues in relation to discrimination against minority groups or minority democracy (Referendums are dominated by elite groups). It also risks consequences including potential unconstitutional impact and its affect to constitutional rights of citizens and limits the right of the Representative Government. Nevertheless, the paper argues that the referendum is, on balance, a net contributor to the human rights development extending democracy for citizens in terms of political and civil rights. This support is based on democratic arguments, as well as obligations incurred by governments that are member states to international human rights conventions and, thereby, committed to implementing relevant provisions.
91-101 50
This article analyzes important issues of Human Rights Law. In particular it focuses on the issue of a state interest and trust. This problem is considered in the light of international law sources such as the International Covenant for Economic, Social and Cultural Rights and the International Covenant for Civil and Political Rights. It is noted that these acts are vague and unclear; therefore State Parties cannot enforce them. The issue of Human Rights is revealed in the context of demonstration of states’ self-interest. International human rights appear to be remote and disconnected from the very persons they seek to protect. In this connection the author considers a matter of the International Human Rights Court.


102-109 35
In the Russian Federation geological survey is carried out by both the state at the expense of public funds and by subsoil users at their own expense. All activities related to geological exploration of mineral resources regardless of the source of financing are held in accordance with the geological project that is subject to the expertise carried out by Rosgeolexpertiza. The paper contains an analysis of the Soviet and current Russian mining legislation, in particular, legislation on geological exploration, and an analysis of main directions of reforming the national system of legal regulation of projects of geological exploration.


110-156 80
Chapter 15 of the United States Code addresses “Ancillary and Other Cross-Border Cases.” It is complex body of law designed to facilitate cooperation between the United States and foreign countries in transnational insolvency cases. Cross-border insolvencies do not exist in a vacuum; Chapter 15 requires many courts and systems to work together and respect each country’s statutory law and common law. This article explains Chapter 15’s purpose, “terms of art,” implementation, and practical realities. U.S. courts have interpreted the law consistently and consonant with Congressional intent of promoting comity and international cooperation in transnational insolvencies. Even so, eleven years after its passage by the U.S. Congress, Chapter 15 has proven to be complicated and somewhat controversial. Case law development continues to shape application of Chapter 15, and this article addresses Chapter 15 disputes such as a debtor’s COMI, standards for eligibility when interpreting 15 U.S.C. § 109(a), and guidance for foreign representatives seeking recognition under Chapter 15.
157-166 42
Unlike a revision, a renewal of treaties through novation amounts to concluding new agreements. As for the consequences of concluding new agreements on the same issues as those that were in the treaties made earlier, many scholars are of the opinion that if the states entered into two agreements on the same issue, the agreement concluded later should be considered as the one in force, and the previous one shall be terminated regardless of whether this is stipulated by a new agreement. But it raises an appropriate question of whether any conclusion of a new treaty relating to the same objects as those of a former treaty should be considered as an event indicative of the termination of the treaty previously concluded. The author tends to believe that the abovementioned position leads to undermining the principle pacta sunt servanda, justifying the possibility of defaulting on previous international obligations under the pretext of the conclusion of new treaties.
167-179 101
This article is devoted to the analysis of the establishment of the professional recognition systems in the European Union agreements with third countries. The issue of mutual recognition of professional qualifications is one of the key elements of the European Union economic integration with third countries. France-Quebec Agreement on Mutual Recognition of Qualifications is the first initiative between the European Union member state and a Canadian province. The agreement supports efforts aimed at negotiating an economic partnership between the European Union and Canada. The agreement applies to all regulated professions and trades in France and Québec, and is based on the recognition of qualifications. It sets frame for signing first Mutual recognition of professional qualifications agreements pertaining to some thirty trades and professions, and for the other regulated professions. The Canada-European Union Comprehensive Economic and Trade Agreement arrangements for the mutual recognition of qualifications grew out of the Franco - Québecois Agreement. The agreement provides a framework to facilitate the mutual recognition of qualifications in regulated professions such as architects, accountants and engineers. The relevant professional organizations in the European Union and Canada now have a framework that sets out the conditions for the negotiation of mutual recognition agreements for their respective professions. The agreement sets mechanism for professional recognition systems and procedure of its formation. It is an example of European Union cooperation with third countries and a new way of cooperation in the scope of mutual recognition. The mechanism of the European Union cooperation with third countries within the mutual recognition scope can be used by other integrational associations in particular by the Eurasian Economic Union.


180-199 167
The paper deals with an array of key problems of administrative procedure and possible ways of solving them. Firstly, for the theme in question the most important problem is the problem of an administration procedure, and an administrative procedure of the executive power implementation. Thus, the conclusion follows that if there is no answer to the question of how to achieve the goal, in what order, what is the logic and sequence of administrative actions, what is the content of procedural activities, the issue concerning an administrative goal becomes meaningless. Secondly, the problem amounts to the discussion with regard to the essence and structure of administrative procedure, its wide administrative and procedural meaning and a narrow jurisdictional and law-enforcement meaning, and the balance between administrative procedures and jurisdictional proceedings. Thirdly, the paper dwells on the independence of administrative procedure law in the Russian legal system.
200-212 127
In the Legal Science the materials of the United Nations Special Commission that acknowledged the crimes committed by the terrorist organization “Islamic State” (ISIS) against the Yazidis of Iraq as genocide are analyzed for the first time. The necessity of an affirmative response from the UN Security Council to the appeal of the Commission for the referral of the Yazidis case to the International Criminal Court or establishment, in this regard, of the Special Tribunal is examined. The international solidarity towards the question concerning the combat against the ISIS must be fortified by the same solidarity towards the question concerning protection of the ISIS’ victims. The military and diplomatic relief executed by Russia and the antiterrorist coalition of states led by the USA to support the Yazidis paramilitary groups that fight against the ISIS is offered as the most effective means of restraint on continuing genocide of the Yazidis, and, on the whole, on carving up an ethno-religious map of the region.


213-223 48
This article analyzes important issues of banking law in particular topical matters of the role of I. R. of Iran for development of Islamic banking. It reveals historical aspects of this issue. The proposal to establish a national Iranian bank was first made by a big money dealer to Qajar king, Naser-o-Din Shah, before the Constitutional Revolution but the Qajar king did not pay much attention to the proposal. However, with the establishment of constitutional rule in the country, the idea of setting up a national Iranian bank, in order to reduce political and economic influence of foreigners, was brought to life in December 1906 and the bank foundation was subject to the completion of its Articles of Association During the past few years, Islamic banking practices have been at the center of many public policy debates, and numerous surveys of extensive literature on Islamic banking have been published over the years. Islamic Banking as an alternate to interest-based banking is not banking in the traditional sense known as conventional banking. It derives its inspiration and guidance from the religious edicts of Islam and has to conduct its operations in accordance with the directives of Sharia’h. The Islamic financial system employed the concept of participation in the business activities of enterprises, utilizing the funds of depositors upon risk on a profit-and-loss-sharing basis. To avoid interest-based operations, Islamic Banks have developed profit-sharing schemes in tapping and mobilization their resources. In this connection the article reveals the Concept and Challenges in Islamic Banking and considers experience of Islamic Banking in Iran. Islamic Banking industry has shown tremendous potential for growth in the last decades all over the word.
224-248 74
This contribution outlines the main characteristics of insolvency rules under “classical” Islamic law, and then makes a comparison with the modern procedures in some Shari’a countries. The conclusion based on this comparison is, first, that nowadays rules are still heavily influenced by the classical concepts of Shari’a law, and, second, that this influence makes the system of insolvency highly outdated and ineffective. Thus, in general the insolvency procedure is hardly ever used in the Islamic world, with the parties preferring other means to resolve any issues arising from the default of one of them. Any modernization of the rules has to go through 'creative’ interpretation of the primary sources of Islamic law, an exercise that was already conducted with respect to the rules on Islamic finance.


249-258 39
The article contains some recommendations for young lawyers with regard to how to work with anti-doping cases. Such cases are more specific then, for example, criminal cases, these disputes have specific decision-making bodies, specific standards of proof, etc. In order to be successful a sports lawyer needs to know the relevant jurisprudence and to understand specifics. Also, this article explains how not to waste your time and what you need to focus on in order to minimize the period of ineligibility for your client.


259-268 72
Due to the continuing processes of globalization and commercialization that have significant impact on the development of modern Russian sports, Russian intellectual property legislation in the field of sports requires improvement. This article is devoted to the study of some directions in which such improvement can be provided, in particular, the paper is devoted to a description of the scope of general legally protected results of intellectual activity and means of individualization equated to them in the field of sports. The classification of the main protected results of intellectual activity and means of individualization equated to them in the field of sports is given in this article.
269-279 147
The recent introduction of a legal mechanism for open licenses to Part IV of the Civil Code of the Russian Federation is currently the most discussed issue in the field of intellectual property. In this paper, the authors analyze the history, concept and legal nature of free licenses, which means the practice of allowing the public to use the finished product of a certain author/owner on the basis of a simple agreement (often concluded in electronic form), also known as Creative Commons. As a rule, this concept applies to works distributed on and via the Internet. The new regulations on free licenses in Russia had been highly anticipated by the legal and digital community in view of a previous lack of proper legal regulation in this sphere. The authors analyze the rules imposed by the new articles of Part IV of the Civil Code (Article 1286.1) dedicated to free licenses, and draw the attention to various aspects and challenges of enforcement of this legal instrument.

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ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)